United States District Court, D. South Carolina, Florence Division
AUDREY P. JORDAN, Plaintiff,
INTEGRITY FIRST FINANCIAL GROUP, INC., Defendants.
REPORT AND RECOMMENDATION
E. Rogers, III United States Magistrate Judge
brings this action pursuant to the Americans with
Disabilities Act (ADA), 42 U.S.C. § 12101, et
seq. and the Americans with Disabilities Act Amendments
Act of 2008 (ADAAA). Presently before the court are
Defendant's Motion to Dismiss (ECF No. 6) and Motion to
Compel Arbitration (ECF No. 7). Plaintiff did not file a
Response to the Motion to Compel Arbitration but did file a
Response (ECF No. 10) in opposition to Defendant's Motion
to Dismiss and indicated therein that she consented to
arbitration. All pretrial proceedings in this case were
referred to the undersigned pursuant to the provisions of 28
U.S.C. § 636(b)(1)(A) and (B) and Local Rule
73.02(B)(2)(g), DSC. This Report and Recommendation is
entered for review by the district judge.
alleges that she worked eight months for Defendant as a
mortgage loan originator before having to leave work due to a
serious medical condition. Compl. ¶ 8(A). Plaintiff
disclosed to Defendant that she required surgery and would
need six weeks of recovery time. Compl. ¶ 8(B). However,
she had complications from surgery and missed more work than
planned. Compl. ¶ 8(B).
worked from home and informed Defendant of doctor's
visits and her return to work options. Compl. ¶ 8(C).
Defendant discharged Plaintiff from employment without
warning or any disciplinary history on June 10, 2016, citing
a lack of production. Compl. ¶ 8(D). Defendant also
refused to compensate Plaintiff fully with her last paycheck.
Compl. ¶ 8(F).
October 7, 2015, Plaintiff signed an Employment Agreement to
begin working for Integrity First as a Loan Officer.
Employment Agreement (Ex. B to Def. Motion to Compel).
Paragraph VII of the Employment Agreement, entitled
Arbitration/Governing Law, states in relevant part,
“This Agreement is made and entered into in the State
of California and governed by the law of the State of
California. In the event of any dispute between the parties
concerning or arising out of their employment relationship,
it shall be resolved through binding arbitration in
accordance with the rules of [Judicial and Arbitration
Mediation Services] JAMS Arbitration ..... ” The
Employment Agreement states, “Employee may opt out of
this provision of the Agreement, thus relieving both parties
of the obligations of this provision, simply by (1) sending a
notarized letter to the attention of Employee's immediate
supervisor copied to the Company's Human Resources
department, both sent via Certified Mail within 30 days of
the execution of this Agreement expressly opting out of this
provision; or (2) striking the entirety of this paragraph and
initialing here as follows.” Plaintiff wrote her
initials and Nationwide Mortgage Licensing System
identification number at the bottom of the page and signed
the Agreement without utilizing either of the opt-out methods
available to her. See Ex. B at pp. 7, 8; Criswell
Decl. at ¶¶ 4, 6 (Ex. C to Def. Motion to Compel).
Paragraph XI(D) of the Agreement further states, “The
Parties agree that this Agreement shall be severable, meaning
that if any provision is held to be unenforceable, it shall
not affect the validity or enforceability of the remainder of
the terms and provisions of this Agreement.”
forth above, Plaintiff consents to arbitration of her claims
pursuant to the Employment Agreement. In the Motion to
Compel, Defendant asks that the court compel Plaintiff to
arbitrate her claims in accordance with the arbitration
agreement and dismiss this action. While Plaintiff filed a
response in opposition to Defendant's Motion to Dismiss,
her opposition appears to be based only on dismissal of this
action on the merits and not to complete arbitration. She
asserts “the Motion to Dismiss is moot as Plaintiff
consents to Arbitration, and this case would no longer be
before the court.” Pl. Resp. p. 5 (emphasis
added). The Fourth Circuit in Choice Hotels Int'l,
Inc. v. BSR Tropicana Resort, Inc., 252 F.3d 707, 709-10
(4th Cir. 2001) provided that dismissal is proper where all
of the parties' claims are covered by the arbitration
agreement. There appears to be no dispute that
dismissal for that reason is appropriate.
reasons discussed above, it is recommended that
Defendant's Motion to Compel Arbitration (ECF No. 7) be
granted, this case be dismissed to pursue
arbitration and Defendant's Motion to Dismiss (ECF
No. 6) on the merits be deemed moot.